Law Management Section committee members Fariha Butt, Alison Downie and Paul Bennett look at the impact of the pandemic and lockdown on agile working and other working patterns
Fariha Butt considers the impact of the COVID-19 pandemic on the world of work, including the increase in agile, portfolio, and flexible working
Could anyone have imagined a 21st century world where nobody would be allowed to go out to work, nor to meet with loved ones, colleagues or clients for fear of death by a potentially deadly disease? Yet here we are, living through this extraordinary new reality, adapting and surviving.
Although many law firms were already equipped for agile working, most businesses were not prepared for the impact of COVID-19 (coronavirus). According to UK government statistics, in July 2020, 9.5 million jobs were furloughed, from 1.2 million different employers; that’s around a third of the total UK labour force.
While employers, including law firms, have had government support to retain staff, the true impact of coronavirus will only be revealed once the government’s job retention scheme comes to an end and the state of the economy is laid bare.
Since lockdown began in March 2020, most law firms have adapted quickly and embraced remote working, having come to understand there is no looking back. Life as we knew it has changed and has forced a reconsideration upon us of where, when and how we have been working and living.
The 2020 Lexis Nexis Bellwether Report reveals that almost half of those surveyed felt that while the impact of COVID-19 is a critical threat, its effects can be mitigated with an effective response. 53% of staff wanted to work from home part- or full-time post-crisis, which was higher amongst women and younger team members. We may not need our offices anymore, but interestingly, we still want to retain some form of office life and face-to-face contact with our teams and clients. Almost half of respondents had seen a greater focus at their firms on mental health issues, while 71% of firms saw the crisis as an opportunity for innovation.
So, where does the business of law go from here?
Anytime, anyhow, anywhere
COVID-19 has accelerated the switch to agile, which was going to happen anyway: many office-based jobs now lean towards agile working wherever possible, and new jobs offer permanent working from home options.
Agile working took off in legal services in the last decade, the industry being a relative latecomer to the idea. Agile empowers people to work when, where and how they choose to. It is an idea whose time has well and truly come, driven in 2020 by a global health crisis, with the main thrust being that the office is no longer just a geographical place, but also a secure PC, laptop or mobile phone. With robust cyber security, we can work from anywhere.
We have known for some time that we need a better work-life balance in law. Pre-COVID-19, we spent an hour on average commuting every day, and even longer in London, according to the TUC. Since lockdown, that’s an extra five to 15 hours a week saved.
Employers have witnessed the benefit of this flexibility in the overall wellbeing of their staff and the obvious cost reduction in office real estate and rents. Predictions are that around a third of us will permanently work from home after the pandemic, as big business leads the charge in the remote working revolution. It is not surprising then that law firms have been scratching their heads, wondering why they did not become agile long before now.
Millennials and generation Z
We work an average 40-hour week in the UK, which is quite light by legal standards. The long hours of typical law firms are not sustainable, taking into account the legal technology now available and an increasingly sophisticated workforce which wants to spend more time away from the office.
The Deloitte Global Millennial Survey 2020 collected the views of 27,500 millennials and generation Zs (gen-Zs) (all born from around 1977 and 1997, respectively) on work and society, both before and during the pandemic. Around half were stressed all or most of the time and a third said they had taken time off work in the last year due to anxiety. Mental health issues and high stress levels were prevalent prior to COVID-19.
Amongst the causes of unhappiness were poor work-life balance and the inability to be their authentic selves. Millennials value benefits other than just salary, prefer collaborative working structures, and are big on work-life balance. Gen-Zs are motivated by good pay levels, would rather work independently and are digital natives. Broadly, these generations expect businesses to reflect their views by putting people before profits, engaging with their communities and focusing on social and environmental issues. They will not hesitate to penalise companies who do not live up to their values.
As they make up most of the global workforce, it follows that their mental health presents a huge challenge for forward-thinking firms. This is not a knee-jerk reaction to a fad or coronavirus – it is an entire movement towards a ‘better normal’.
Flexible working, aka better working hours
In 2018, a New Zealand-based financial estate management company, Perpetual Guardian, made waves by trialling a four-day work week while continuing to pay its staff for five days. Productivity rose and staff were found to have higher levels of wellbeing. It was such a success that it was adopted as a permanent policy. ICE Group, an Ireland-based recruitment company, did the same thing and found people became more focused on work and took fewer breaks.
But can this type of flexibility translate well to an industry traditionally fixated with time and the billable hour?
The question raises others about why we work in the way that we do: could there be better alternatives that are more in keeping with shifting attitudes? Many businesses had already dropped to a four-day working week prior to the pandemic, and several city law firms implemented reduced hours in a bid to manage the financial impact of COVID-19, albeit with associated pay cuts. This could become a permanent policy on the other side of the crisis.
Increasing numbers of millennial and gen-Z lawyers are rejecting the 24/7 work culture and looking to the gig economy; they know it will not provide a fixed, regular income, but accept this as the price of freedom. They want work like they want their Netflix and Uber Eats: on demand. This is also reflective of how our behaviour is changing to develop an appetite for immediate solutions. It is not so radical to think of lawyers in a few years from now telling the legal equivalent of Amazon’s Echo Dot, “Alexa, bring me work”.
They are also influencing decision-makers and those more senior to them too, resulting in flexible recruitment strategies and policies, which have been adapted rapidly to keep pace. In the past, making partner was the ultimate success symbol for ambitious lawyers, but now many are eschewing partnership as a career move. Meanwhile, law firm infrastructure is evolving fast, with investments made in cloud computing, automation, blockchain technology and artificial intelligence. Lawtech is moving so fast that its efficiency and productivity is outpacing experienced lawyers. The law firm of the future could quite conceivably be run by computer programmers and an army of graduates.
Technology + freelancer = the next normal
In recent years, we have seen the rise of the freelancer in the legal profession – not just qualified lawyers, but paralegals, project managers, IT and HR professionals – as part of a drive towards optimising value for clients and eliminating waste. It is also a recognition of changing lifestyles.
BigLaw has been doing this for some time with flexible solutions for corporate clients, where a pre-vetted lawyer is matched with the client’s needs on a freelance assignment basis, either on or offsite. Similar setups have and will continue to hit the mainstream, with crowdworking becoming more prevalent and democratising legal work, giving freelancers more autonomy over which assignments to take, and firms access to a broader selection of talent, at lower fixed costs.
As firms innovate and adapt, recruitment and retention strategies must become more flexible. Meanwhile, legal professionals with portfolio careers are managing their skills risk profile (i.e. their employability), generating multiple income streams, feeding their passion, upskilling and starting side hustles. In some cases, this has been achieved entirely as a result of agile working.
What does change look like?
Lawyers with portfolio careers manage their time to do everything that they want to do, not just on the weekends or whenever they find the time. They fit work around their lives.
KP is a commercial property lawyer who up until last year was an associate at a city firm. He is now living and travelling around Australia and enjoying a superior work-life balance. He has been consulting for UK law firms for several months. The flexibility of his arrangement has allowed him to combine working and travelling.
Other lawyers have combined legal careers with being a personal trainer, eBay seller, interior designer or blogger. This is not exclusive to younger professionals. Highly experienced lawyers are also taking on freelance roles in order to pursue other interests, diversify their skill set or care for elderly relatives.
With stress being as high as it is in the profession across all levels, flexible working is imperative for wellbeing. With appropriate contractual provisions, firms can offer their staff the choice to work for multiple employers as employees or freelancers, whether that is within or outside of law. With blended teams of employees and consultants, firms can maintain business continuity, gain access to specific skills as and when needed, and manage their fixed costs. Perhaps a four-day working week is not so far-fetched for an agile legal sector in the future?
There are obvious pros and cons to portfolio working, with irregular income and possibly fewer opportunities for upwards career progression. For firms, there may be skills shortages from time to time and recruitment costs could rise with increased demand, but these risks can be balanced. Freelance / portfolio working is a lifestyle choice, and will become more widespread as technology continues to advance and working practices adapt.
We have been handed an opportunity to reinvent how we work. The agile transformation is here to stay, and the winning strategies of leaders in law will be tech-first, lean and supported by freelancers. Firms will have to innovate even more than they already are to stay competitive in the post-COVID-19 world.
Agile working and regulation
Law firm leaders must fulfil their professional duties when organising agile working arrangements. Paul Bennett offers some tips
- Agile and flexible working means assessing how confidentiality is protected. It will vary depending on your team’s personal circumstances, so train them to be thinking of this instinctively.
- If using professionals on a self-employed basis, you should assess the risk to legal privilege and conflicts of interest, because an agile worker could find themselves compromised by acting for multiple similar firms
- Risk assess, document your findings, and monitor.
- Prepare to invest in the right equipment, such as privacy screens and headsets, as part of your risk assessment planning.
Agile working and employment
Coronavirus has wrought massive changes in the workplace and will continue to do so. Alison Downie explains why you need to take care when negotiating new working arrangements to employees or new staff
Proposals and contract documents should be clear, straightforward, and carefully thought through. This is a complex area, and there are many points to consider.
1. Employment status
Employment status dictates an individual’s statutory legal rights and your obligations as an employer. There are three status types:
- employees have full employment rights, including statutory annual leave and pay, sick pay and redundancy pay
- self-employed contractors (freelancers / consultants) have minimal employment rights and no entitlement to statutory annual leave or sick pay
- workers are not full employees nor truly self-employed, because although likely to be on a self-employed contract, they are integrated into the workforce / firm and under your control in some ways. As a result, legally they are not truly self-employed. A worker has more limited employment protection and, importantly, has rights to annual leave and pay, including backdated unpaid holiday pay for a considerable time.
2. Drafting consultant (self-employed contractor) contracts
To minimise the risk of an intended consultant / self-employed contractor later claiming to be a worker, include express terms in their contract giving the individual the unrestricted rights to accept or decline work; to appoint another person to substitute for them on work; and stating that the individual is not an employee nor is it an employment contract. There are other important terms to include (and the agreement should be a good balance for you and them in any event), so it’s best to seek professional employment advice to assist on drafting.
3. Varying terms of employment
For existing employees, if you plan to move towards more flexible working arrangements by changing contracts, especially for freelancers / self-employed staff, always reach agreement on terms with the individual. This is best for good staff relations in any event, but imposing material changes unilaterally, which are opposed by the individual, could amount to unfair dismissal.